On January 6, 2012, President Obama announced a plan to change the federal regulations on the unlawful presence waiver. This is good news for some undocumented immigrants who have accumulated “unlawful presence” (or ULP)” in the United States for either 6 months or 1 year, which subjects them to a three or ten year bar, respectively. Sometimes called a “601 waiver” the Unlawful Presence bar waiver is available to noncitizens who have not committed crimes and who can prove extreme hardship to U.S. citizen spouse, children or parents.

Under the current rules, even if otherwise eligible for a visa to the United States, the noncitizen must remain in his country for 3 or 10 years or until the unlawful presence waiver is processed, which could take six months to a year or more. The proposed change to the federal regulation will allow noncitizens to request a provisional waiver while they are still in the United States, before heading home to process in their own country for a visa and permanent resident status. The purpose is to minimize the time qualifying immigrants who apply for visa and green cards to avoid being separated from their families for the long periods of time it takes to process the waiver. This change in policy is particularly important to Mexican nationals, who have historically accounted for 75 per cent of all I-601 waiver applications filed.

Referred to as “in country processing” the proposed regulation permits USCIS to grant a provisional waiver to those who qualify before they return to their own country to obtain a visa to the United States. Needless to say, the proposal has angered many Republicans and others who oppose any moderation in immigration law or policy. The proposed change does not require a change in the law and can be affected by a change in rulemaking, which does not require the approval of Congress.

As of this writing, the proposal has not completed the federal rule making process and the provisional waiver is not yet available and will not be available to potential applicants until USCIS publishes a final rule. In country processing of this waiver is not an amnesty, and qualifications for the waiver remain the same. An I-601 waiver is a complicated process and one should seek the assistance of a qualified immigration lawyer experienced in preparing I-601 applications.